Shivam Nishad Vs State of U.P. Thru. Prin. Secy. Home, Lko. and 3 Others

Court No. - 16

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2988 of 2023

Applicant :- Shivam Nishad Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And 3 Others Counsel for Applicant :- Bal Keshwar Srivastava,Masood Ali Counsel for Opposite Party :- G.A.

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Balkeshwar Srivastava, learned counsel for the applicant, Sri Manish Kumar Pandey, learned A.G.A. for the State and perused the records.

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Although, notice has been served upon the opposite party no.2, but none has put in appearance on behalf of informant to oppose the bail application.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No. 267 of 2022, under Sections 376 DA, 323, 506 I.P.C. and Section 3/4 & 5/6 of Protection of Children from Sexual Offences Act, 2012, registered at Police Station Kotwali Jalalpur, District Ambedkar Nagar.

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The aforesaid case has been registered on the basis of an F.I.R. lodged on 14.09.2022 against four named accused persons, including the applicant, alleging that when the informant's minor daughter was returning after easing herself at about 2.15 a.m. in the night of 11.09.2022, the accused persons ambushed her, dragged her to a sugarcane field, raped her and videographed the incident.

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During her statement recorded under Section 161 Cr.P.C. the informant stated that one of the co-accused Vikas was not involved in the incident. She further stated that the accused

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persons had caught hold of a boy who she does not know and they had made him to sit with her and they had prepared the video.

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In the medico legal examination report of the victim no external injury was reported on any part of her body.

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In her statement recorded under Section 164 Cr.P.C. she did not said anything about the alleged video of the incident prepared by the accused persons.

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A supplementary affidavit has been filed on behalf of the applicant annexing therewith the copies of statements of the informant and the victim recorded by learned trial court and none of them have supported the F.I.R. allegation in their statements recorded before learned trial court.

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Learned counsel for the applicant has submitted that the coaccused Aman has already been enlarged on bail by this court by means of an order dated 03.04.2023, passed in Criminal Misc. Bail Application No.2928 of 2023.

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In the affidavit filed in support of bail application it has been stated that the applicant is innocent, he has been falsely implicated in the present case and he has no criminal history.

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The learned A.G.A. has opposed the prayer for bail but he could not dispute the aforesaid aspects of the matter.

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Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that there are discrepancies in the F.I.R. version and the statements recorded under Sections 161 and 164 Cr.P.C. and the informant and the victim have not supported the allegations in their statement recorded by learned trial court; that the co-accused Aman has already been granted bail by this court coupled with the fact that the applicant has no

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previous criminal history and he is languishing in jail since 15.09.2022 and without making any observation, which may affect the merits of the case, I am satisfied that the applicant is entitled to be enlarged on bail in the aforesaid case crime.

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Accordingly, this bail application stands allowed .

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Let the applicant-Shivam Nishad be released on bail in Case Crime No. 267 of 2022, under Sections 376 DA, 323, 506 I.P.C. and Section 5/6 of Protection of Children from Sexual Offences Act, 2012, registered at Police Station Kotwali Jalalpur, District Ambedkar Nagar on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

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(i) the applicant shall not tamper with the prosecution evidence;

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(ii) the applicant shall not pressurize the prosecution witnesses;

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(iii) the applicant shall appear on each and every date fixed by the trial court.

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In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

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(Subhash Vidyarthi, J.)

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Order Date :- 10.4.2023 Ram.